in the Interest of T.S., R.S., I.S., and S.S., Children ( 2019 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-19-00260-CV
IN THE INTEREST OF T.S., R.S., I.S., AND S.S., CHILDREN
On Appeal from the 181st District Court
Randall County, Texas
Trial Court No. 72,959-B, Honorable Jack M. Graham, Presiding
December 5, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Mother appeals the trial court’s termination of the parent-child relationship between
her and her four children, T.S., R.S., I.S., and S.S. On appeal, she challenges the
sufficiency of the evidence, the trial court’s admission of testimony over her hearsay
objection, and the trial court’s failure to file findings of fact and conclusions of law. We
affirm.
Background
The relationship between the biological mother and father of these four children
involved years of physical abuse by the father. He admitted to having hit Mother several
times in the presence of the children. Father also had an ongoing methamphetamine
addiction. Mother did not use drugs.
After Mother and Father separated due to Father’s conduct, Mother began a
relationship with Houston.1 This relationship involved Houston engaging in physical
abuse directed at the children and drug use, as well. Mother and the Department knew
that Houston regularly used marijuana. In connection with earlier Department
involvement, the Department advised Mother to refrain from allowing the children to be
left in Houston’s care. Mother disregarded that advice. Furthermore, Houston undertook
disciplining the children regularly. The discipline was excessive, and Mother noted that
the children suffered pain longer than what should be expected after spankings from
Houston. Mother directed him to discontinue his physical discipline of the children.
Mother noted the bruises but, despite already noting the severity of the “spankings,”
attributed the bruises to ordinary childhood play and such. Though she did acknowledge
at trial that Houston abused the children, her initial reactions were marked by denial.
Photographs of the bruising were made part of the record.
During one incident shortly after Mother’s directive to stop spankings, in late
December 2017, Houston pushed three-year-old I.S. into a wall and caused injury to his
face.2 This incident precipitated CPS to become involved with the family again and led
to the children’s removal. Mother believed this to be an accident and, even when
1 Father had spent some time in drug rehabilitation facilities in both Texas and Colorado. Following
his return to Amarillo and at the time of the instant hearing, he was incarcerated on pending charges of
assault–family violence against Mother and of violation of a protective order by contacting Mother. Father
testified at the hearing and, although his parental rights were also terminated at this time, he has not
appealed that judgment.
2 The Department introduced evidence that, as a result of this contact, Houston had been indicted
for injury to child at the time of the hearing.
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confronted with statements to the contrary from the Department, did not acknowledge
Houston’s abuse. She, instead, continued to characterize him as a good person and
continued the relationship. Eventually, the relationship ended after the children were
removed.
Mother also occasionally left the children in the care of a friend whose home was
filthy and posed serious physical dangers to the children. When the investigator visited
the babysitter’s home, she observed the children dirty and disheveled laying under a
blanket covered in piles of dog feces. Garbage, lighters, gas can, cleaning supplies,
boards, and knives were strewn about the home and within the children’s reach. Mother
maintains that she was unaware of these conditions because she had never gone to that
home; the babysitter would pick the children up at Mother’s home.
The trial court found that Mother knowingly placed or knowingly allowed the
children to remain in conditions or surroundings which endanger the physical or emotional
well-being of the children and engaged in conduct or knowingly placed the children with
persons who engaged in conduct which endangers the physical or emotional well-being
of the children. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E) (West Supp. 2019). It
also found that termination of the parent-child relationship was in the best interest of the
children. See id. § 161.001(b)(2). Mother has perfected the appeal.
Mother presents four issues for this court’s review. She maintains that the trial
court erred by failing to file findings of fact and conclusions of law. She also contends
that the trial court abused its discretion when it admitted over hearsay objection a CPS
investigator’s statement regarding the report by the eldest child that Mother left the
children alone. She also challenges the sufficiency of the evidence to support the trial
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court’s finding of the predicate grounds for termination and of the trial court’s finding that
termination of the parent-child relationship was in the children’s best interests.
Issues Three and Four - Sufficiency of the Evidence
We first address Mother’s sufficiency arguments, presented as her third and
fourth issues. We do so because they would provide her the greatest relief if sustained.
See In re K.W., 138 S.W.3d 420, 428 (Tex. App.—Fort Worth 2004, pet. denied) (“When
a party presents multiple grounds for reversal of a judgment on appeal, the appellate court
should first address those points or issues that would afford the party the greatest relief.”).
We overrule both issues.
The Texas Family Code allows a court to terminate the relationship between a
parent and a child if the party seeking termination establishes (1) one or more acts or
omissions enumerated under § 161.001(b)(1) and (2) termination of that relationship is in
the child’s best interest. In re K.M., No. 07-19-00073-CV, 2019 Tex. App. LEXIS 4178,
at *1 (Tex. App.—Amarillo May 21, 2019, pet. denied) (mem. op.); see TEX. FAM. CODE
ANN. § 161.001(b)(1)-(2). Both elements must be established by “clear and convincing
evidence.” See In re K.M., 2019 Tex. App. LEXIS 4178, at *1. That standard is met when
the evidence of record “will produce in the mind of the trier of fact a firm belief or conviction
as to the truth of the allegations sought to be established.” Id. In reviewing whether the
evidence is sufficient to do that, we apply the tests described in In re K.M.L., 443 S.W.3d
101, 112–13 (Tex. 2014), and In re K.V., No. 07-16-00188-CV, 2016 Tex. App. LEXIS
11091, at *6–8 (Tex. App—Amarillo Oct. 11, 2016, no pet.) (mem. op.). And, in applying
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those tests to the finding of best interest, we compare the evidentiary record to the factors
itemized in Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).3
Section 161.001(b)(1)(D) permits termination when clear and convincing evidence
shows that the parent “knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional well-being of the
child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(D). It requires a showing that the child’s
environment posed a danger to the child’s physical or emotional health, and it permits
termination based on a single act or omission by the parent. In re M.M., No. 07-19-00105-
CV, 2019 Tex. App. LEXIS 7505, at *7 (Tex. App.—Amarillo Aug. 21, 2019, pet. denied)
(mem. op.). Though the subsection concerns the child’s living environment, a parent’s
conduct may be considered since it may create an environment endangering the child.
Id. at *8.
Under subsection (E), the relevant inquiry is whether there exists evidence
illustrating that the endangerment of the child’s well-being was the direct result of the
parent’s conduct, which conduct includes her acts and omissions. Id. Termination under
subsection (E) must be based on more than a single act or omission but rather on a
voluntary, deliberate, and conscious course of conduct by the parent. Id. at *8–9.
3 The Holley factors are as follows: (1) the desires of the child; (2) the emotional and physical needs
of the child now and in the future; (3) the emotional and physical danger to the child now and in the future;
(4) the parenting abilities of the parent seeking custody; (5) the programs available to assist the parent; (6)
the plans for the child by the parties seeking custody; (7) the stability of the home or proposed placement;
(8) the acts or omissions committed by the parent which may indicate that the existing parent-child
relationship is not a proper one; and (9) any excuse for the acts or omissions committed by the parent.
Holley, 544 S.W.2d at 372. Furthermore, the evidence need not establish that all the Holley factors support
the conclusion that termination is in the child’s best interest, and the absence of evidence of some factors
does not preclude the fact-finder from reasonably forming a strong conviction that termination is in the
child’s best interest. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
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Subsections (D) and (E)4
By permitting Houston into the home and allowing him to remain after being made
aware that he was using excessive force against the children, Mother created an
environment that posed a danger to the children. Her failure to protect the children not
only subjected them to the immediate physical threat Houston posed but also left the
children vulnerable in a more general sense to the impact of having been abused. See
In re L.C., 145 S.W.3d 790, 797–98 (Tex. App.—Texarkana 2004, no pet.) (finding
sufficient evidence under subsection (E) when mother knew of abuse allegations but
failed to adequately protect her children, noting that “[w]ithout the protection of their
mother, the children may suffer continued abuse and may feel less inclined to report any
abuse”).
Again, though Mother maintains she was unaware of Houston’s abuse, the
factfinder could reasonably deem her position disingenuous; the record contains evidence
indicating she was well aware of the risk prior to the December 2017 incident
necessitating the children’s removal. She advised Houston that he should no longer
spank the children days prior to the incident in which he shoved I.S. into a wall and injured
his face. Even if she remained uncertain as to whether Houston intentionally caused the
injury to I.S.’s face and the bruises on the children, it is sufficient that she was aware of
the potential for abuse of the children and disregarded that risk. See In re Tidwell, 35
S.W.3d 115, 119–20 (Tex. App.—Texarkana 2000, no pet.)
4 As we have noted, there are specific considerations as to subsections (D) and (E), but we note
that endangerment of the child’s physical or emotional well-being is an element of both subsections (D) and
(E). See In re N.K., 399 S.W.3d 322, 329–30 (Tex. App.—Amarillo 2013, no pet.). Because evidence
concerning subsections (D)’s and (E)’s statutory grounds for termination is interrelated, we will consolidate
our review of the evidence supporting these grounds and note, when and if necessary, any relevant
distinctions to be drawn. See id.
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With regard to the abuse in the marriage, it too endangered the children. See In
re I.G., 383 S.W.3d 763, 770 (Tex. App.—Amarillo 2012, no pet.); see also In re A.R.E.,
No. 14-19-00437-CV, 2019 Tex. App. LEXIS 9685, at *17 (Tex. App.—Houston [14th
Dist.] Nov. 5, 2019, no pet. h.) (mem. op.) (“Violent conduct by a parent toward the other
parent may produce an environment that endangers the physical or emotional well-being
of a child.”). Further, a parent’s failure to remove herself and her children from a violent
relationship endangers the physical or emotional well-being of the children. See In re
I.G., 383 S.W.3d at 770.
From her failure to protect the children from Houston’s abuse and her pattern of
remaining in abusive relationships without regard to the impact that the abuse had on the
children, we conclude that the evidence was legally and factually sufficient for the
factfinder to form a firm conviction and belief that Mother placed the children in conditions
and engaged in conduct which endangered their physical and emotional well-being. See
TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E).
Best Interest
For many of the same reasons, we conclude that the Holley factors weigh in favor
of the trial court’s finding that termination of the parent-child relationship is in the children’s
best interest. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). For years, the children had
been exposed to drug use and physical abuse. Indeed, continued exposure to domestic
violence and drug abuse are circumstances supporting a determination that termination
of the parent-child relationship is in the child’s best interest. See In re K.M., 2019 Tex.
App. LEXIS 4178, at *5; In re M.R., 243 S.W.3d 807, 820 (Tex. App.—Fort Worth 2007,
no pet.).
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Additionally, a parent’s failure to protect his child weighs in favor of the finding that
termination is in the child’s best interest. See In re A.J.H., No. 01-18-00245-CV, 2019
Tex. App. LEXIS 223, at *36 (Tex. App.—Houston [1st Dist.] Jan. 15, 2019, no pet.) (mem.
op.). Mother permitted Houston into the family home when she knew he regularly used
drugs. Though she claims that she was unaware of his abuse, the record belies her
claims. Even prior to the children’s removal, she knew that his discipline was excessive
when she directed him to refrain from spanking them. In the interim, she employed half
measures and also, for months after the children’s removal, insisted that Houston was a
good person, “a gentle giant.” See Spurck v. Tex. Dep’t of Family & Protective Servs.,
396 S.W.3d 205, 223 (Tex. App.—Austin 2013, no pet.) (noting that the fact-finder could
have reasonably inferred that parent’s past failure to protect child from emotional and
physical danger may suggest likelihood of same failure in the future). Her denial of
Houston’s abuse and his character and her consequential failure to protect the children
reveals she lacked a fundamental understanding of her role as a parent.
Since their removal, the children underwent therapy due to their fears. At the time
of trial, they lived with relatives who have provided them stability, proper care, and a loving
home environment. These relatives also have expressed the desire to adopt the four
children, meaning they can continue to thrive amongst family and with the companionship
of all their siblings.
Based on the record before us, the factfinder could have formed a firm conviction
and belief that termination of the parent-child relationship was in the best interest of the
children.
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Issue One - Failure to File Findings and Conclusions
Mother complains of the trial court’s failure to file findings of fact and conclusions
of law. We overrule the issue.
Mother requested findings of fact and conclusions of law on July 10, 2019, but did
not file a notice of past due findings. Per our rules of civil procedure,
If the court fails to file timely findings of fact and conclusions of law, the party
making the request shall, within thirty days after filing the original request,
file with the clerk and serve on all other parties in accordance with Rule 21a
a “Notice of Past Due Findings of Fact and Conclusions of Law”
TEX. R. CIV. P. 297. The failure to file a notice of past due findings of fact forfeits the right
to complain about the trial court’s failure to file findings of fact and conclusions of law.
See Las Vegas Pecan & Cattle Co. v. Zavala Cty., 682 S.W.2d 254, 255 (Tex. 1984). No
such notice appears in the record of this case, and error has not been preserved.
Furthermore, the ultimate issues of fact were stated in the trial court’s judgment.
They consisted of the statutory grounds upon which the trial court relied for terminating
the parental relationship and the finding of best interests. Since findings of fact need only
encompass ultimate facts, see In re M.O., No. 06-19-00004-CV, 2019 Tex. App. LEXIS
5038, at *13 (Tex. App.—Texarkana June 19, 2019, no pet.) (mem. op.), and the ultimate
facts were mentioned in the termination order, it cannot be said that Mother was harmed
by the failure to separately issue findings of fact and conclusions of law. Indeed, the 72-
page brief filed by Mother tends to negate the suggestion that she “cannot properly
prepare her case” to the appellate court.
Issue Two - Admission of Investigator’s Testimony
Mother contends that the trial court abused its discretion when it admitted over her
objection testimony from the investigator that the eldest child, T.S., reported to the
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investigator that Mother and Houston left the children alone in the home. Despite this
objection a DVD recording of T.S.’s interview at The Bridge was admitted into evidence
by agreement. Per the parties’ stipulation, the trial court agreed to watch and consider
the recorded interviews prior to issuing its ruling. We too have viewed T.S.’s interview
and note that, in that interview, she explained how Mother and Houston wanted to have
a date and left her to watch the other children. T.S. explained that, while she was
watching the children, one of her little brothers got into the fish food and ate it. She
explained that it was supposed to be a quick trip, but it was longer than that. She also
indicated that this happened on more than one occasion. Because the same or similar
evidence was admitted without objection, any error in overruling the hearsay objection
was cured or rendered harmless. See In re J.M., No. 07-13-0011-CV, 2013 Tex. App.
LEXIS 4547, at *5–6 (Tex. App.—Amarillo Apr. 9, 2013, no pet.) (mem. op.). We overrule
Mother’s second issue.
Having overruled Mother’s four issues, we affirm the trial court’s judgment
terminating the parent-child relationships.
Per Curiam
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